A Colorado jury awarded former Raytheon engineer Bruce Casias $43,000 in back pay and $1M in compensatory damages in a Defense Contractor Whistleblower Protection Act (DCWPA) case.  The case highlights the broad scope of protected whistleblowing under the DCWPA and the potential to recover uncapped compensatory damages for emotional distress and reputational harm.  Congratulations to Mr. Casias and his counsel Ralph Torres.

Raytheon Whistleblower’s Protected Conduct

The scope of protected whistleblowing under the DCWPA includes the disclosure of information that the employee reasonably believes is evidence of:

• gross mismanagement of a DOD contract or grant;

• a gross waste of DOD funds;

• an abuse of authority  relating to a DOD contract or grant;

• a substantial and specific danger to public health or safety; or

• a violation of law, rule, or regulation related to a federal contract.

Mr. Casias worked as a lead test engineer on Raytheon’s contract with the United States Air Force to produce the next generation of satellites — the GPS OCX Program.  He was responsible for developing and running test procedures called dry runs for the GPS OCX Program.  In 2015, Mr. Casias and his team encountered defects preventing the successful completion of test procedures.

When Mr. Casias raised concerns about the defects, his supervisor, Mr. Hollon directed him to change the failed procedures from “incomplete” to “complete.”  Mr. Casias expressed concern that doing so was unethical and contrary to Raytheon’s contract with the Air Force.  Nevertheless, he made the changes because he feared that he would be fired for disobeying his supervisor’s direction.

DCWPA Retaliation

The DCPWA proscribes a broad range of retaliatory personnel actions, including discharging, demoting, or otherwise discriminating against a whistleblower as a reprisal for engaging in DCWPA-protected whistleblowing.  In this case, the jury instructions clarify that an adverse action is materially adverse if it “well might have dissuaded a reasonable employee in Mr. Casias’s circumstances from engaging in the protected activity,” the standard set forth by the Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Shortly after raising concerns about fraudulent reporting on the status of testing for the GPS OCX Program, Raytheon demoted Mr. Casias by reassigning him from his post as manager of the GPS OCX Program to a lower level role in the GPS OCX Program developing software scripts.  The number of employees under his supervision decreased from 35 to two.  Mr. Casias deemed his new position a “dead-end reassignment.”  A few months after being demoted, Mr. Casias resigned and obtained a position at a Raytheon competitor.

Raytheon contended that the demotion was not actionable retaliation because Mr. Casias experienced no reduction in pay, no change in benefits, no change in title, and no change in supervisor.  Judge Krieger denied summary judgment on this issue primarily due to affidavits from Mr. Casias’ peers painting a picture where it was obvious to Raytheon employees that the reassignment was punishment.  And one of Mr. Casias’ co-workers testified that Mr. Casias’ supervisor told him that he was also removed due to his association with Mr. Casias, thereby suggesting animus for Mr. Casias’ protected conduct.  Accordingly, there was a triable issue of fact as to whether Mr. Casias’ reassignment was a materially adverse action.

Causation

In its motion for summary judgment, Raytheon contended that the reassignment was precipitated by  “mistakes in metrics” of the testing procedures and not by any protected activity.  In denying summary judgment on causation, Judge Krieger found that Mr. Casias could prove causation due to close temporal proximity and the fact that Raytheon did not reassign all of Mr. Casias’ team members who were working on the software testing and therefore also potentially culpable for the inaccurate data.  In addition, Mr. Casias’ deposition testimony suggested that Raytheon’s justification for the demotion was pretextual in that he was blamed for inaccurate metrics data when his supervisor had directed Mr. Casias to inaccurately designate incomplete tests as completed tests.

Implications for Whistleblowers

Casias’ win at trial underscores how the DCWPA can be a potent remedy for whistleblowers at defense contractors and grantees.  Another remedy available to defense contractor whistleblowers is the anti-retaliation provision of the False Claims Act.  By bringing both a DCWPA and FCA retaliation claim, a whistleblower can potentially obtain double back pay, uncapped compensatory damages, and other relief.  For more information about the DCWPA, see Whistleblower Protections Under the National Defense Authorization Act.